When accused of patent infringement, the defendant is often very flustered, and it is easy to rush to respond or passively negotiate and mediate with the plaintiff. In fact, sometimes, in the face of patent infringement charges, as a defendant, you need to have a set of emergency plans, step by step to prepare for responding, and maybe there is a chance! According to the characteristics of intellectual property rights such as patent rights and the relevant provisions of Chinese laws, the following provides some ideas for the defendant in patent infringement litigation:
First, make clever use of China's jurisdiction objection system-strive for the necessary preparation time for responding to the lawsuit
People's Republic of China (PRC) Civil Procedure Law: After the people's court accepts the case, if the parties have any objection to the jurisdiction, they should raise it during the submission of the defense. The people's court shall examine the objections raised by the parties. If the objection is established, it shall be ordered to transfer the case to the people's court with jurisdiction; If the objection is not established, the ruling shall be rejected. "Jurisdiction objection is an important litigation right of the parties!
After receiving the prosecution materials transmitted by the people's court, the defendant may raise an objection to the jurisdiction within the period of defense, or even appeal against the objection to the jurisdiction after it is rejected by the court. This is the right given to the parties by law! Of course, although it won't have any serious consequences to raise an objection to jurisdiction without foundation just to win the necessary preparation time for responding to the lawsuit, it is suspected of wasting judicial resources and belongs to the abuse of rights. We don't encourage this!
Second, question the existence of the plaintiff's patent right-deny the plaintiff's right base.
After receiving the prosecution materials of the plaintiff, the patent provided by the plaintiff must be examined:
1. The protection period of the plaintiff's patent expires?
The validity period of invention patents is 20 years, and the validity period of utility model and appearance patents is 10 year. When the protection expires, the patent enters the public domain and loses legal protection, and anyone can implement it.
2. Is the plaintiff the right holder of the patent? Are you qualified to sue independently?
When the plaintiff is not the original applicant of the patent, it is necessary to examine whether the plaintiff has obtained the patent ownership through transfer, that is, to examine the authenticity, legality and relevance of the transfer contract;
Or if the plaintiff obtains rights through a license contract, it is necessary to examine the license type of the plaintiff to judge whether the plaintiff has independent litigation qualification: the licensee with exclusive license can independently exercise the right to sue; General permission must be exercised by the obligee; The licensee of an exclusive license shall file a lawsuit separately with the obligee or with the consent of the obligee.
3. Is the plaintiff's patent authorized in China?
Patents are regional, and only patents authorized by China Intellectual Property Office can be protected in China. If the patent is an American patent or a patent authorized by other countries, it is not protected in China.
4. Is the plaintiff's patent in a valid state?
In some cases, the plaintiff may not pay the annual patent maintenance fee in time, which leads to the early termination of the patent right. Therefore, it is necessary to check whether the plaintiff has submitted the latest annual fee invoice for the patent when suing.
Third, file a patent invalidation request.
On the one hand, once the plaintiff's patent right is declared invalid, there is no patent infringement;
On the other hand, the defendant can also request the people's court to suspend the patent infringement lawsuit while requesting the invalidation of the plaintiff's patent right, and wait until the Patent Reexamination Board makes a decision on the validity of the patent right. You can also file a first-instance or second-instance administrative lawsuit for patent invalidation against the decision of the Patent Reexamination Board. Therefore, in judicial practice, many defendants delay litigation for two or three years or even four or five years through the patent invalidation procedure. After a long period of defending rights, the plaintiff is often tired and will take the initiative to negotiate with the defendant.
Of course, the proposal of invalidation should not go beyond the scope of legal causes stipulated in the detailed rules for the implementation of the patent law, and the collection of invalid evidence should also focus on the selected legal causes. For invention patents and utility model patents, common invalid reasons mainly include the following aspects:
1. The invention-creation granted a patent right does not have the essential elements of authorization-that is, it does not have novelty and creativity.
The defendant needs to search the existing related technologies in this field to see if there is any existing technology that affects the novelty and creativity of this patent.
2. The invention-creation granted the patent right is not fully disclosed in the specification, and according to the contents of the specification, the technicians in this field cannot realize this patent.
3. The scope of patent protection required by the claim cannot be found in the specification-the claim is not supported by the specification.
Fourth, see if you meet the requirements of fair use.
According to the provisions of the patent law, the following circumstances are not regarded as infringement of patent rights:
1, the product manufactured by the patentee or licensed by the patentee is used or sold after it is sold-the principle of exhaustion;
2, before the patent application has been produced and used, continue to implement in the original scope-the right to use first;
3, temporary transit of foreign means of transport for their own needs to use the relevant patents in their devices or equipment;
4. Related patents used exclusively for scientific research and experiments.
In addition, it is also a legal act to implement related patents according to the national plan license or the compulsory license approved by the Patent Office.
Verb (abbreviation of verb) non-infringement defense-does not belong to the plaintiff's patent protection scope.
After the defendant is accused of patent infringement, he should carefully analyze the plaintiff's patent claim to see whether his invention belongs to the plaintiff's patent protection scope. The defendant's behavior does not constitute infringement if it belongs to the following three situations:
1, the invention implemented by the defendant is actually the equivalent of the existing technology, which has nothing to do with the plaintiff's patent-known technology defense.
2. Although the invention implemented by the defendant was disclosed in the plaintiff's patent specification, the plaintiff's patent claim did not put forward corresponding protection requirements in the right, or the patentee made a disclosure beyond the protection scope of his claim in the specification due to the defects in the writing of patent application documents. The excess part is not protected and others can use it at will-the principle of contribution. (The scope of patent protection shall be subject to what is recorded in the claims, and the description is only used to explain the contents of the claims. )
3. The invention-creation implemented by the defendant is significantly different from the plaintiff's patent in the composition of necessary technical features-different and not equal. Patent infringement usually meets the requirements of the principle of universal application. If the accused infringing product lacks any necessary technical features compared with the patented product, it will not infringe the plaintiff's patent right. At this point, the defendant needs to make a detailed technical comparison between his product and the plaintiff's patent. )
Six, although the defendant has tort, but can not bear the responsibility according to law.
For sellers, buying and selling products without knowing the infringement of patent rights can be exempted from compensation liability as long as they can provide legal sources, such as purchase invoices.
Or the plaintiff has instructed the defendant to implement his patented technology, although he has not signed a license contract with the plaintiff.
Or the defendant can prove that the alleged infringement occurred two years ago, and the plaintiff knew or should have known this situation at that time (it is best to show the lawyer's letter, warning letter and other letters sent by the plaintiff to the defendant to prove that the plaintiff knew the defendant's infringement as early as two years ago), then the plaintiff lost the right to win the case because the statute of limitations has expired, and the defendant may not bear the corresponding tort liability. Of course, if the defendant's infringement continues, it cannot be used as a defense.
The above is the relevant legal knowledge about patent litigation. When the patent right is infringed, the parties will choose to take legal action to safeguard their legitimate rights and interests. The court accepts the case and the infringer needs to respond. If you want to know more, you can also consult a lawyer.